Citation Nr: 0702500
Decision Date: 01/26/07 Archive Date: 01/31/07
DOCKET NO. 03-24 594 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Little
Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for ulcers and
duodenitis.
2. Entitlement to an initial evaluation in excess of 10
percent for benign prostatic hypertrophy with prostatitis.
3. Entitlement to an initial evaluation in excess of 10
percent for cardiac dysrhythmia, status post pacemaker
insertion.
4. Entitlement to an initial evaluation in excess of 10
percent for irritable bowel syndrome.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Raymond F. Ferner, Counsel
INTRODUCTION
The veteran had active service from May 1968 to May 1970,
from June 1974 to June 1976, and from March 1977 to March
1979.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from decisions of the Department of
Veterans Affairs (VA) Regional Office (RO) in Little Rock,
Arkansas, that denied the benefits sought on appeal. The
veteran initiated this appeal and the case was referred to
the Board for appellate review. In May 2004 and February
2006, the Board returned the case to the RO for additional
development and the case has been returned for further
appellate review.
When the case was previously before the Board in February
2006, the Board issued final decisions with respect to the
veteran's claims for service connection for a cardiac
dysrhythmia, status post pacemaker insertion and entitlement
to an initial compensable disability rating for hearing loss.
As such, those matters are no longer before the Board.
After the February 2006 BVA decision granted service
connection for cardiac dysrhythmia, status post pacemaker
insertion, a March 2006 rating decision effectuated the
Board's decision and assigned a 10 percent evaluation for
that disability. The veteran subsequently submitted
statements which effectively expressed disagreement with that
initial evaluation. This matter will be addressed in the
REMAND portion of this decision.
Also in February 2006, the BVA remanded the veteran's claim
for an initial increased evaluation for benign prostatic
hypertrophy with prostatitis, with specific directives to
ascertain the severity of the disorder. Because these
directives were not completed, the claim is again REMANDED.
Stegall v. West, 11 Vet. App. 268, 271 (1998) (Holding that
compliance by the Board or the RO with remand directives is
neither optional nor discretionary, and that where the remand
directives of the Board or the Courts are not complied with,
the Board errs as a matter of law when it fails to ensure
compliance).
In addition, a rating decision dated in July 2004 granted
service connection for irritable bowel syndrome and assigned
a 10 percent evaluation. A statement from the veteran
submitted in September 2004 submitted on a VA Form 9 (Appeal
to Board of Veterans Appeals) expressed disagreement with the
initial evaluation assigned. This matter will also be
addressed in the REMAND portion of this decision.
Lastly, statements the veteran submitted during the course of
this appeal raise a claim for a total evaluation based on
individual unemployability due to service-connected
disabilities. However, this matter is not currently before
the Board because it has not been prepared for appellate
review. Accordingly, this matter is referred to the RO for
appropriate action. See Roberson v. Principi, 251 F.3d 1378,
1384 (Fed. Cir. 2001) (Holding that once a veteran submits
evidence of a medical disability and submits a claim for an
increased disability rating with evidence of unemployability,
VA must consider a claim for a total rating based on
individual unemployability).
FINDING OF FACT
Ulcers and duodenitis were not manifested during service or
for many years following separation from service, and are not
shown to be causally or etiologically related to service.
CONCLUSION OF LAW
Ulcers and duodenitis were not incurred in or aggravated by
active service, nor may ulcers be presumed to have been so
incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137,
1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102,
3.159, 3.303, 3.304, 3.307, 3.309 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
Before addressing the merits of the veteran's claims on
appeal, the Board is required to ensure that the VA's "duty
to notify" and "duty to assist" obligations have been
satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002);
38 C.F.R. § 3.159 (2006). The notification obligation in
this case was accomplished by way of letters from the RO to
the veteran dated in August 2001, December 2003, May 2004,
March 2006, and April 2006.
The RO also provided assistance to the veteran as required
under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as
indicated under the facts and circumstances in this case. As
to the claim presently decided, the veteran was afforded a VA
examination in May 2006, accompanied by a review of his
claims folder. Shipwash v. Brown, 8 Vet.App. 218, 222
(1995); Flash v. Brown, 8 Vet.App. 332, 339-340 (1995)
(Regarding the duty of VA to provide medical examinations
conducted by medical professionals with full access to and
review of the veteran's claims folder); See Charles v.
Principi, 16 Vet. App. 370 (2002). .
The veteran and his representative have not made the RO or
the Board aware of any additional evidence that needs to be
obtained in order to fairly decide this appeal, and have not
argued that any error or deficiency in the accomplishment of
the duty to notify and duty to assist has prejudiced him in
the adjudication of his appeal. Mayfield v. Nicholson, 19
Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157
(Fed. Cir. Apr. 5, 2006). Therefore, the Board finds that
duty to notify and duty to assist have been satisfied and
will proceed to the merits of the veteran's appeal.
Service Connection Claim
The veteran essentially contends that he was treated for
gastrointestinal symptomatology during service and that he
was later diagnosed with ulcers and duodenitis. Therefore,
the veteran believes that service connection is warranted.
Applicable law provides that service connection will be
granted if it is shown that the veteran suffers from a
disability resulting from an injury suffered or disease
contracted in the line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in the line
of duty, in active military, naval, or air service.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service
connection may also be granted for certain chronic diseases
such as a peptic ulcer, when such disease is manifested to a
compensable degree within one year of separation from
service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R.
§§ 3.307, 3.309. If there is no showing of a chronic
condition during service, then a showing of continuity of
symptomatology after service is required to support a finding
of chronicity. 38 C.F.R. § 3.303(b). Service connection may
also be granted for any disease diagnosed after discharge,
when all evidence, including that pertinent to service,
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d). Generally, to prove service
connection, the record must contain: (1) Medical evidence of
a current disability, (2) medical evidence or in certain
circumstances, lay testimony, of an inservice incurrence or
aggravation of an injury or disease, and (3) medical evidence
of a nexus or a relationship between a current disability and
the inservice disease or injury. Pond v. West, 12 Vet. App.
341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).
The veteran essentially contends that the now service-
connected irritable bowel syndrome caused, or is of the same
etiology which caused ulcers and duodenitis.
This is an issue which must be resolved by resort to
competent medical evidence. By "competent medical
evidence" is meant in part that which is provided by a
person who is qualified through education, training, or
experience to offer medical diagnoses, statements, or
opinions. 38 C.F.R. § 3.159(a).
While the veteran's service medical records show that he was
seen for gastrointestinal symptomatology during service, the
weight of the competent medical evidence demonstrates that
the veteran's ulcers and duodenitis are not related to
service. Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson
v. Brown, 7 Vet. App. 36 (1994); see also Guerrieri v. Brown,
4 Vet. App. 467, 470-471 (1993) (Observing that the
evaluation of medical evidence involves inquiry into, inter
alia, the medical expert's personal examination of the
patient, the physician's knowledge and skill in analyzing the
data, and the medical conclusion that the physician reaches).
A May 2002 statement from a registered nurse indicates that
the veteran's complaints of stomach pain and cramping
continued throughout the 1970's and that in July 1982 the
veteran was diagnosed with probable irritable bowel syndrome.
The statement went on to note that during the 1980's the
veteran continued to have gastrointestinal problems and that
an EGD showed superficial gastric ulceration, acute
duodenitis and a partial obstruction of the common bile duct.
The nurse concluded that it could be deduced that all of the
gastric problems were the result of extreme anxiety during
the veteran's stay in the military.
In order to resolve the question of the etiology of the
veteran's ulcers and duodenitis, the Board requested that the
veteran be afforded a VA examination. A May 2006 report of
that examination reflected that the veteran's claims file was
reviewed in connection with the examination. Shipwash,
supra. Following the examination and review, the examiner
essentially concluded that the gastrointestinal
symptomatology manifested during service was at least as
likely as not caused by the veteran's irritable bowel
syndrome, his service-connected disability.
However, the examiner noted that the veteran was initially
diagnosed with peptic ulcer disease in 1984 when an upper
endoscopy was performed while admitted with complaints of
abdominal pain. The examiner noted that the veteran had
suggested that he had symptoms of abdominal pain, dyspepsia
and irritable bowel syndrome-like symptoms since service, but
a 1982 upper gastrointestinal test failed to show any ulcer
disease, but rather just duodenitis.
The examiner noted the veteran's history of blunt abdominal
trauma in 1969 when he was kicked while in the barracks, but
indicated that the veteran did not have a diagnosis of peptic
ulcer disease while in service. The examiner conceded that
it would be very difficult to suggest or not to suggest
whether the veteran had peptic ulcer disease while serving in
the service as no endoscopic evaluation was performed for his
abdominal pain at that time. As such, a probable peptic
ulcer could not be ruled out.
However, the examiner explained that the veteran had classic
presentation with a discharge diagnosis of abdominal pain
with alternating bowel constipation and diarrhea, with a
discharge diagnosis of irritable bowel syndrome in 1982. The
examiner concluded that based on the evidence available with
the history, medical record review, and endoscopic findings,
the veteran was known to have a gastric ulcer in 1984 and
that documentation of peptic ulcer disease was not available
prior to 1984, given the negative upper gastrointestinal
series performed in 1982.
The examiner concluded that the determination as to whether
the symptoms associated with the abdominal pains, cramps,
dyspepsia were related to irritable bowel syndrome or peptic
ulcer disease was not possible based on clinical history,
although abdominal pain and dyspepsia caused by peptic ulcer
disease was as probably as likely caused by irritable bowel
syndrome.
Based on this record, the Board concludes that service
connection for ulcers and duodenitis is not warranted. Such
disorders were not shown during service, and there is no
clinical evidence of peptic ulcer disease until 1984, and
certainly not until after the diagnostic testing performed in
1982. Therefore, since both ulcers and duodenitis were first
clinically demonstrated following separation from service,
and are not shown by the medical evidence of record to be
related to the gastrointestinal symptomatology shown during
service, the Board finds that the medical evidence is against
the veteran's claim.
Given the results of the VA examination, for the Board to
conclude that the veteran's disorder had its origin during
military service in these circumstances would be speculation,
and the law provides that service connection may not be based
on resort to speculation or remote possibility. 38 C.F.R. §
3.102; Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992);
Obert v. Brown, 5 Vet. App. 30, 33 (1993). It has been
observed that statements from doctors which are inconclusive
as to the origin of a disease can not be employed as
suggestive of a linkage between the current disorder and the
claimed incident of military service. Warren v. Brown, 6
Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6
(1993).
While the May 2002 statement from the registered nurse
suggests that the veteran's gastric problems were the result
of extreme anxiety, the Board finds that the opinion rendered
following the May 2006 VA examination from a physician has
greater probative value than the opinion from a registered
nurse. Guerreri, supra. The May 2006 VA examination report
also reflects a complete review of all medical records
associated with the claims file, including the veteran's
service medical records and post service medical records.
Therefore, the Board finds that the May 2006 VA examination
report, which concludes that the gastrointestinal
symptomatology manifested during service was a manifestation
of the service-connected irritable bowel syndrome, has the
greatest probative value with respect to the etiology of the
veteran's ulcers and duodenitis. Consequently, the Board
concludes that the weight of the medical evidence
demonstrates that the veteran's ulcers and duodenitis are of
post service origin and are unrelated to the gastrointestinal
symptomatology shown in the veteran's service medical
records.
The veteran was advised of the need to submit medical
evidence demonstrating a nexus between his ulcers and
duodenitis and service by way of letters from the RO to him,
but he has failed to do so. A claimant has the
responsibility to present and support a claim for benefits
under laws administered by the VA, 38 U.S.C.A. § 5107(a), and
the veteran was clearly advised of the need to submit medical
evidence of a relationship between his ulcers and duodenitis
and an injury, disease or event in service. While the
veteran is clearly of the opinion that his current ulcers and
duodenitis are related to service, as a lay person, the
veteran is not competent to offer an opinion that requires
specialized training, such as the etiology of a medical
disorder. Espiritu v. Derwinski, 2 Vet. App. 492, 494
(1992). Accordingly, the Board concludes that service
connection for veteran's ulcers and duodenitis is not
established.
ORDER
Service connection for ulcers and duodenitis is denied.
REMAND
The Board's review of the record discloses that the veteran
has expressed disagreement with the initial evaluations
assigned for his irritable bowel syndrome and heart disorder.
After a July 2004 rating decision granted service connection
for irritable bowel syndrome and assigned a 10 percent
evaluation, the veteran submitted a VA Form 9 in November
2004 which specifically expressed disagreement with the
initial evaluation assigned for the irritable bowel syndrome.
Similarly, after a March 2006 rating decision granted service
connection for a cardiac dysrhythmia, status post pacemaker
insertion and assigned a 10 percent evaluation, the veteran
submitted a statement, clearly received within one year of
the date of the March 2006 rating decision in which he
expressed disagreement with the percentage assigned for his
heart disability.
Because the filing of a notice of disagreement initiates
appellate review, the claim must be remanded for the
preparation of a statement of the case. Manlincon v. West,
12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398,
408-10 (1995).
With regard to the veteran's claim for an increased initial
disability evaluation for benign prostatic hypertrophy with
prostatitis, in its February 2006 remand, the Board directed
that the veteran undergo a medical examination by a qualified
physician, who was to respond to specific inquiries. Those
inquiries were based upon the specific provisions of the
applicable diagnostic code.
Although in its request for the medical examination, the RO
echoed the Board's directives, scrutiny of the June 2006 VA
urological examination reveals that the examiner did not
respond to inquires. The Board is therefore required by law
to remand the claim for specific compliance by the RO.
Stegall, supra.
This case is being returned to the RO via the Appeals
Management Center in Washington, D.C., (RO/AMC) and the
veteran will be notified when further action on his part is
required. Accordingly, this case is REMANDED for the
following action:
1, The RO/AMC should take appropriate
action, including the issuance of a
Statement of the Case on the appeals
initiated by the veteran from the July
2004 and March 2006 rating decisions
which assigned initial 10 percent
evaluations for irritable bowel syndrome
and cardiac dysrhythmia, status post
pacemaker insertion. The veteran and his
representative should be clearly advised
of the need to file a Substantive Appeal
if the veteran wishes to complete an
appeal from those determinations.
2. The RO/AMC should make arrangements with the
appropriate VA medical facility for the veteran to
be afforded an examination by an appropriately
qualified physician. The claims file and a
separate copy of this remand must be made available
to and reviewed by the examiner prior and pursuant
to conduction and completion of the examination.
Any indicated special studies must be conducted. An
examiner, with appropriate expertise, must be
requested to opine as to whether prostatitis is
currently present and if so, whether it is
manifested by:
A) continual urine leakage, post surgical
urinary diversion, urinary incontinence, or
stress incontinence requiring:
a) wearing of absorbent materials, which
must be changed less than 2 times per
day;
b) wearing of absorbent materials, which
must be changed 2 to 4 times per day; or
c) wearing of absorbent materials, which
must be changed more than 4 times per
day.
B) urinary frequency as follows:
a) daytime voiding interval between two
and three hours, or awakening to void two
times per night;
b) daytime voiding interval between one
and two hours, or awakening to void three
to four times per night; or
c) daytime voiding interval less than one
hour, or awakening to void five or more
times per night.
C) obstructed voiding as follows:
a) marked obstructive symptomatology
(hesitance, slow or weak stream,
decreased force of stream) with any one
or combination of the following: post
void residuals greater than 150 cc;
uroflowmetry markedly diminished peak
flow rate (less than 10cc/sec); recurrent
urinary tract infections secondary to
obstruction; or stricture disease
requiring periodic dilatation every 2 to
3 months; or
b) urinary retention requiring
intermittent or continuous
catheterization.
D) urinary tract infection as follows:
a) requiring long-term drug therapy, 1 to
2 hospitalizations per year and/or
requiring intermittent intensive
management; or
b) with recurrent symptomatic infection
requiring drainage/frequent
hospitalization (greater than two
times/year), and/or requiring continuous
intensive management.
The examiner is also asked, to the extent possible, to
distinguish which continual urine leakage, post surgical
urinary diversion, urinary incontinence, stress
incontinence, urinary frequency, obstructed voiding,
and/or urinary tract infections are attributable to the
service-connected prostatitis.
The RO should take such additional development action as it
deems proper with respect to the claims, including the
conduct of any other appropriate VA examinations, and follow
any applicable regulations and directives implementing the
provisions of the VCAA as to its notice and development.
Following such development, the RO should review and
readjudicate the claims. See 38 C.F.R.
§ 4.2 (If the findings on an examination report do not
contain sufficient detail, it is incumbent upon the rating
board to return the report as inadequate for evaluation
purposes.). If any such action does not resolve the claims,
the RO shall issue the veteran a Supplemental Statement of
the Case. Thereafter, the case should be returned to the
Board, if in order.
The purpose of this REMAND is to obtain additional
development, specifically to comply with the precedent
decision in Manlincon v. West, 12 Vet. App. 238 (1999) and
the Board does not intimate any opinions to the merits of the
case, either favorable or unfavorable, at this time. The
veteran is free to submit any additional
evidence and/or argument he desires to have considered in
connection with this matter. Kutscherousky v. West, 12 Vet.
App. 369 (1999). No action is required of the veteran until
he is notified.
______________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs